Anti Infiltration Law 3.0 – Continuing to Ignore the High Court of Justice

By Hagai El-Ad, ACRI


Update: On December 18, the High Court of Justice issued a temporary injunction to prevent the implementation of the law. Accordingly, no new asylum seekers can be sent to the Holot detention facility. The state has until December 28 to lodge a formal response.


ACRI, together with its partners, has submitted an expedited legal petition to the High Court of Justice calling for the invalidation of the latest amendment to the Anti-Infiltration Law, and for an interim order to delay the implementation of the law with regards to those who are yet to be summoned to the Holot Detention Facility. 


The opening of the appeal, submitted on December 18, 2014, makes evident that “The population that this legal appeal refers to is one of the most reviled and vulnerable groups in Israel. The incitement against them has reached unprecedented levels […] Politicians use them as scapegoats upon which they lay the blame for the genuine distress of other disadvantaged segments of Israeli society […] after years of inciting against this group – it is no wonder that lawmakers believe that it is legitimate to adopt new measures to punish, deter, imprison and make miserable the lives of these people.”


The petition seeks to invalidate the provision that enable detention in the Holot facility and imprisonment at the “Saharonim” prison. The attorneys referred as well to the legislative initiatives that are designed to rein in the power of the court: “Members of Knesset appear shocked and aghast that the court reiterated the fact that it is dealing with human life, and yet they stand their ground – and draft more of the same… in their astonishment, they craft hysterical and aggressive yet utterly ineffective legislation, to show that they are acting…after the Supreme Court twice invalidated the amendments to the Anti-Infiltration Law, lawmakers have presented new bills with objectives, measures and ideas that are almost identical to the rejected laws. The lawmakers are not engaging in “dialogue” with the judiciary, but are engaged in a no holds barred fist fight. In recent months, representatives of the legislature and the executive authority mocked the court’s judgment and made clear that they accepted only parts of the court’s “suggestions”. They even sent a clear threat to the court – if they rule for a third time that the amendment is unconstitutional, they will pass a new law that will neutralize the concept of judicial review.”


The attorneys further clarified that the purposes of the new amendment is identical to those rejected by the court – primarily the intention to “encourage” asylum-seekers to leave Israel by breaking their spirit, even in the knowledge of the danger they face in their home countries. “The law continues to violate the rights of people who are entitled to international protection and who Israel itself decided it would not deport… Similarly to the laws that were rejected before it, this law is focused on breaking the spirit, imprisoning and restricting the freedom of those who can not be deported. All this in order to apply pressure on them to leave “voluntarily” – a goal that the judges described as being an inappropriate purpose and a violation of the principle of non-refoulement. This purpose dictates the arrangements set forth in the new law, in which there is no benefit for the residents of South Tel Aviv and no protection for the rights of those people feeling from torture and persecution.”


The appeal emphasized the Supreme Court’s rejection of the validity of denying liberty as a means of deterring potential asylum seekers. “The court clarified – deterrence is deterrence, and it has no place in frameworks for the denial of liberty. The state has twice disregarded the court’s rulings in this matter… lawmakers are acting as if they are haggling with the court and are trying to choose a new measure each time that is supposedly more moderate than its predecessor and will, in their view, meet the test of proportionality, while ignoring the court’s rulings about the invalid objective of the law. This is bullying, and shows complete contempt for the decisions of the court. This further gives the impression that the state will continue on this path, even if it is determined that the declared intention of the law is invalid”.

In response to the supplementary aim of “preventing asylum seekers from establishing their lives in Israeli cities”, the petitioning attorneys made clear in the appeal that imprisoning asylum seekers in Holot for 20 months will not assist in the promotion of this aim, and will not in any way help improve the lives of the residents of South Tel Aviv and other areas where asylum seekers tend to congregate. “Asylum seekers will return to the same cities upon their release from the detention centers, after they have been torn away from their lives for years, from their homes and livelihoods, and will have to start over without access to healthcare of social services…Consequently, asylum seekers will begin to congregate in even more crowded residential areas, and will be in need of even more community support mechanisms. As such, the distress of the residents of the areas in which they live – South Tel Aviv in particular – will only increase.”


Beyond the invalidated legislative purposes that remain intact in the new law, the legal appeal makes clear that the Holot facility has also been maintained without undergoing changes. The elimination of two of the daily roll-calls and the limitation of the length of the incarceration do not change the fact that freedom is being denied to thousands of people. In reality, the detainees can not afford daily trips on public transportation to reach cities outside of the facility. “The court ruling did not invalidate the fourth amendment to the law – but found it unconstitutional owing to the daily routine inside the detention facility, which is run by Israeli prison services, which denies the right to privacy and in which detainees remain idle with only the provisions for survival provided. This was determined due not only to the frequency of roll-calls or the length of detention. The current amendment does not resolve this constitutional failure and so continues to disproportionately violate fundamental rights.”


The hurried legislative proceedings are particularly perplexing considering the fact that for more than two years there has been almost total cessation of asylum seekers entering Israel through its southern border – a fact that should require the state to adopt less harmful measures. Despite this, the state has adopted the same plan that was invalidated by the court without considering any possible alternatives. In light of the duration of this unconstitutional state of affairs, the legal appeal calls for a swift hearing in order to present the constitutional issues that the new amendment to the Anti-Infiltration Law raises, and for an interim order to prevent the transferal of additional asylum seekers to the Holot facility.


The petition was submitted to the court by Attorneys Oded Feller and Yonatan Berman from the Association for Civil Rights in Israel, Attorneys Asaf Weitzen and Rachel Friedman from the Hotline for Refugees and Migrants, Attorneys Anat Ben-Dor and Aelad Cahana from the Refugee Rights Clinic at the Tel Aviv University Faculty of Law and Attorney Osnat Cohen-Lifshitz from the Clinic for Migrants’ Rights – College of Law and Business. The petition was also filed on behalf of ASSAF – Aid Organization for Refugees and Asylum Seekers in Israel, The African Refugee Development Center (ADRC), Kav La’Oved and Physicians for Human Rights as well as two asylum seekers – citizens of Eritrea and Sudan who have been failed for ten months at the Holot facility.


Additional Materials

The full legal appeal (in Hebrew).

The successful legal appeal against the second Anti-Infiltration Law

The successful legal appeal against the first Anti-Infiltration Law.

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Categories: Refugees and Asylum-Seekers

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